MCA v The State of Western Australia
[2019] WASCA 22
•4 FEBRUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MCA -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 22
CORAM: MAZZA JA
MITCHELL JA
PRITCHARD JA
HEARD: 20 JUNE 2018
DELIVERED : 4 FEBRUARY 2019
FILE NO/S: CACR 179 of 2017
BETWEEN: MCA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SCOTT DCJ
File Number : IND 1951 OF 2016
Catchwords:
Criminal law - Appeal against conviction - Conviction after trial - Five counts of sexual penetration of a child under the age of 13 years - Four counts of indecent dealing with a child under the age of 13 years - Two complainants - Whether evidence of the change in behaviour of one complainant at a time proximate to the offending admissible - Whether trial judge erred in admitting the change in behaviour evidence in exercise of his Honour's discretion - Whether trial judge erred in directing the jury regarding the change in behaviour evidence
Legislation:
Criminal Appeals Act 2004 (WA), s 30(4)
Criminal Code (WA), s 320(2), s 320(4)
Evidence Act 1906 (WA), s 36BE
Result:
Leave to appeal on ground 2 refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr T F Percy QC & Mr G Yin |
| Respondent | : | Ms A Forrester SC & Ms K C Cook |
Solicitors:
| Appellant | : | DG Price & Co |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Azarian v The State of Western Australia [2007] WASCA 249
Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443
CMG v The Queen [2011] VSCA 416
Eades v The Queen [2001] WASCA 329
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359
R v Flannery [1969] VR 586
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
RST v The State of Western Australia [2016] WASCA 59
JUDGMENT OF THE COURT:
This is an appeal against conviction.
The appellant was tried before Scott DCJ and a jury on 17 counts of alleged sexual offending against three female complainants aged under 13 years at the time of the alleged offending.[1] The complainants, who we will identify as M, C and R, were cousins. They were the nieces of their maternal aunt, who was, during the relevant period, married to the appellant. Thus, the appellant was their uncle by marriage.[2]
[1] Supplementary Blue Green AB 1 - 3.
[2] ts 25 - 26.
On 15 August 2017, the appellant was found guilty and duly convicted of six counts in relation to M, and three in relation to C. He was acquitted of the two counts relating to R, and of three counts relating to M and C respectively.[3]
[3] Blue Green AB 5 - 7; ts 311, 502.
In relation to M, the appellant was convicted of three counts of sexually penetrating a child under the age of 13 years, contrary to s 320(2) of the Criminal Code (WA) (the Code) (counts 2, 3 and 8), and three counts of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Code (counts 1, 4 and 15).
In relation to C, the appellant was convicted of two counts of sexually penetrating a child under the age of 13 years (counts 6 and 7), and one count of indecent dealing with a child under the age of 13 years (count 13).
On 17 August 2017, the appellant was sentenced to a total effective sentence of 7 years 6 months' imprisonment with eligibility for parole.[4]
[4] ts 526.
The appellant relies on two grounds of appeal. These grounds concern a portion of the evidence given at trial, over objection, by C's mother, J. In general terms, ground 1 complains that the evidence in question was inadmissible and that, if it was admissible, it should have been excluded in the exercise of the trial judge's discretion. Ground 2, which was added at the hearing of the appeal,[5] alleges that the directions the trial judge gave in respect of the evidence constituted an error in law.
[5] Appeal ts 6.
Leave to appeal has been granted in relation to ground 1.[6]
[6] Order 19 November 2017 WAB 4.
In our opinion, neither ground of appeal has been made out and the appeal should be dismissed. Our reasons for these conclusions are as follows.
Overview of the State's case at trial
In overview, the State's case against the appellant may be summarised in this way. The offences allegedly committed by the appellant in respect of M, C and R occurred over a period of approximately 4½ years, between late November 1999 and mid‑May 2004. In that period, each of M, C and R were under the age of 13 years. M was born in November 1990, C was born in May 1990, and R was born in October 1992.[7]
[7] ts 26.
The appellant was, in the timeframe during which the offences occurred, aged between 30 and 34 years,[8] and he was married to the girls' maternal aunt. The appellant and his wife lived at an address in a suburb of Perth.[9] They did not have children of their own.[10] The complainants, their parents, and the appellant and his wife were close and socialised often. Each of the complainants referred to the appellant as their uncle.[11]
[8] ts 521.
[9] ts 25.
[10] ts 181, 269.
[11] ts 25 - 26.
M, C and R were frequent visitors to the appellant's house, particularly during the summer months, as the appellant and his wife had a swimming pool and, later, a spa.[12]
[12] ts 26 - 27.
As the appellant was acquitted of the two counts in respect of R, it is only necessary to focus upon the allegations of sexual misconduct made in respect of M and C. As to each of them, we will only outline the State's case in respect of those counts of which the appellant was convicted.
Count 1 - M - indecent dealing
On a date unknown between 27 November 1999 and 30 April 2000, when M was about 10 years old, and the appellant's wife was away for the weekend, M slept over at the appellant's home. It was alleged that M slept with the appellant in his bed. Each of them was naked. According to M, the appellant lifted her onto him so that they were face‑to‑face. He then moved her up and down and backwards and forwards so that his erect penis rubbed against her vagina.[13]
Counts 2 and 3 - M - sexual penetration
[13] ts 31.
The State alleged that these offences occurred on the same day, on a date unknown, between 27 November 1999 and 30 April 2000 at the appellant's home. According to M, they occurred on a weekend when she and the appellant had swum naked in the swimming pool. The State's case was that M and the appellant went inside the house and while still naked, they lay down together on a mattress in the lounge room. There, the appellant gave M an alcoholic drink, and they watched some pornography. While watching this material, the appellant engaged in cunnilingus with M (count 2). He then changed position so that his erect penis was in front of M's mouth. After she kissed and licked it, the appellant pushed his penis into her mouth (count 3).[14]
Count 4 - M - indecent dealing
[14] ts 31 - 32.
On a date unknown between 1 January 2000 and 30 June 2000, M and some of her relatives were at R's parents' house. The State's case was that M was in the lounge room with R. The appellant walked into the kitchen area. While he was there, M and R snuck over and sat down at his feet while he was talking to the adults through the kitchen window. M reached up to his shorts and played with his penis under his underwear. The appellant stood there allowing M to touch his penis.[15]
Counts 6 and 7 - C - sexual penetration
[15] ts 32.
On a date unknown between 27 November 2001 and 31 January 2002, when C was about 11, the appellant picked her and M up from M's house and took them back to his house. There, the appellant gave each of them an alcoholic drink while they were sitting in the spa. Some time later, the appellant joined them, wearing black Speedos. While they were in the spa together, on a number of occasions, the appellant went under water, holding his breath for a period of time. On one of these occasions, he penetrated C's vagina with his finger (count 6). On another occasion, he put his head between C's legs and licked her vagina (count 7).[16]
Count 8 - M - sexual penetration
[16] ts 32 - 33.
On a date unknown between 1 January 2000 and 16 May 2003,[17] the appellant, C and M were, once again, in the appellant's spa. On this occasion, all of them were naked. The State alleged that the appellant took turns kissing the girls. At one point, after rubbing M's vagina, he inserted his thumb into her vagina and moved it back and forth while M was in the water.[18]
Count 13 - C - indecent dealing
[17] Though the appellant was arraigned on count 8 on the basis that the offence occurred on a date unknown between 27 November 2001 and 16 May 2003, at ts 16, the date range for the offending was between 1 January 2000 and 16 May 2003 in the dummy indictment at supplementary Blue Green AB 6 and in the sentencing remarks at ts 518.
[18] ts 33.
On a date unknown between 1 January 2002 and 31 December 2002, about three months after the commission of counts 6 and 7, the appellant, C and M were watching a pornographic movie in the lounge room of the appellant's home. C was wearing bathers, while the appellant was naked. The appellant pushed his erect penis towards his belly button and told C to sit on his lap, which she did. As she did so, the appellant rubbed his penis against her vagina.[19]
Count 15 - M - indecent dealing
[19] ts 34.
On a date unknown between 1 January 2000 and 27 November 2003,[20] M and C[21] were 'skinny dipping' in the appellant's pool. Afterwards, M walked naked into the kitchen where the appellant was present, also naked. The appellant lifted M onto the kitchen bench, laid her on her back, and rubbed his erect penis against her vagina.[22]
[20] cf Indictment at supplementary Blue Green AB 3.
[21] ts 441.
[22] ts 34.
None of the complainants made a complaint to the police or anyone about the appellant's conduct at or around the time of the offending. That did not occur until late 2015 or early 2016.[23]
[23] ts 445.
Additional evidence
In addition to the testimony of M, C and R, the State led evidence of some sexualised messages sent by the appellant in 2004 via MSN Messenger to C.[24] The prosecution also led evidence of a 'pretext call' from M to the appellant in early 2016 in which he admitted, according to the State, sexually touching M and, in a passing reference, to touching C.[25]
[24] Exhibit 3.1, 3.2, ts 38.
[25] Exhibit 6, ts 79.
The State led evidence from C's mother, J. We will refer to aspects of her evidence later in these reasons.
The appellant was interviewed by police on 16 February 2016. He denied any wrongdoing.[26]
[26] Exhibit 18, ts 295.
On the State's case, the evidence relating to the counts involving M and C was cross‑admissible.[27] The trial judge directed the jury accordingly.[28] Thus, the appellant contends, if the convictions with respect to C are set aside, so too must the convictions in respect of M.
[27] ts 410 - 412.
[28] Ts 452 - 453.
Overview of the defence case at trial
The defence case at trial was that the appellant and his then wife always wanted to have children but were unable to do so. The appellant treated M, C and R as if they were his own children and loved them very much, but he had no sexual attraction towards them.[29] The appellant denied that anything improper had ever occurred between any of the complainants and himself, and that the charges were, as defence counsel put it in his opening address, 'a complete fabrication on all counts'.[30]
[29] ts 40.
[30] ts 42.
In defence counsel's opening address, he emphasised that the appellant had voluntarily participated in a lengthy interview with police and had 'denied everything'.[31]
[31] ts 42.
The appellant testified at trial. Again, he denied any wrongdoing.[32] He denied going into the pool or the spa naked, and said that the children never went into the pool or the spa without their bathers on.[33] He denied having any pornography in the house.[34]
[32] ts 315.
[33] ts 320.
[34] ts 326 - 327.
With respect to the conversation using MSN Messenger, he said that he 'wasn't in the best head space at that stage'. He said that there was no truth in what he wrote. He also said that he realised that he was conversing not with C but with C's mother, J, and that he was 'letting them hear what they wanted me to say'.[35]
[35] ts 348 - 350, 387 - 388.
As far as the pretext call was concerned, when he said that he had done 'stupid things', he was referring to the MSN messages, but that he was not admitting to having sexually abused M or any of the children.[36]
[36] ts 352 - 355.
Although counsel for the appellant opened the defence case on the basis that the appellant did not know why the complainants had fabricated the allegations against him, and emphasised that there was no onus upon him to prove any motive on their part, he nevertheless suggested that there may be a financial motive, perhaps 'criminal injuries compensation or something like that'.[37] In cross‑examination, both M and C were cross‑examined on the basis that each was financially motivated to make false claims about the appellant, and each of them denied this suggestion.[38]
[37] ts 41 - 42, 44.
[38] Evidence of M, ts 105; evidence of C, ts 148 - 149.
Defence counsel, in his opening and closing addresses, noted the long delay between the commission of the alleged offences and the making of a complaint in 2015.[39] It was suggested to the jury that the long delay was indicative of the falsity of the allegations.
[39] ts 40, 44, closing address ts 45, 51 - 52, 54 - 55, 57, 60.
In addition to the evidence of the appellant, the defence called good character evidence from six witnesses.[40]
[40] ts 397, 399, 401, 403, 404, 406.
The grounds of appeal
The grounds of appeal relied on by the appellant, in their amended form, are in these terms:[41]
1AThe learned trial Judge erred in law by allowing the prosecution to adduce evidence by [J] as to the change in behaviour in [C] at a time proximate to the offending.
1BIn the event the evidence was admissible, the learned trial Judge erred in the exercise of his discretion by admitting the evidence, as the prejudicial effect to the accused outweighed any probative value of the evidence.
2.That the learned trial judge erred by directing the jury that they could use the evidence of the witness [J] relating to the change in the demeanour and behaviour of the complainant [C] as evidence tending to prove the commission of the offences against [C].
Grounds 1A and 1B - background
[41] Appeal ts 7.
In her evidence, C was cross‑examined, inter alia, about why she had not complained about the appellant's conduct at the time of the offending, or when the MSN messages came to light. In essence, in answer to defence counsel's questions, C stated that she was still a child and that she had been very embarrassed and upset by what had occurred. She added that she felt that the appellant had manipulated the situation to ensure that she kept quiet, and that 'he groomed me the whole time beforehand'.[42]
[42] ts 147 - 148, 170.
Towards the end of C's cross‑examination, defence counsel once again returned to the theme of why C had not made a complaint about the appellant's conduct at the time of the MSN messages. The relevant exchange is as follows:[43]
[43] ts 168 - 169.
Q: Again, I don't want to harp on this but I think I have to ask you again, wouldn't that have been the ideal time to tell your mother if anything had been happening?
A: It's not something easy to talk about.
Q: Well, you found it fairly easy, didn't you, after [R] spoke to you?
A: No, I haven't found it easy at all.
Q: She spoke to you one day and you were at the police station the next, weren't you?
A: No. She spoke …
Q: How long did it take you after you spoke to [R]?
A: I think January or February [2016].
Q: Well, she spoke to you I think in the November [2015] [sic].
A: Mm hmm.
Q: You signed your statement in the January [sic], isn't that right?
A: I think so.
Q: You were always close to your mum, weren't you, you didn't have any difficulties at home?
A: I was close with my mum until I started getting messed around with. And then I grew distant and we had problems.
Q: That's because of what [the appellant] was doing to you, was it?
A: Yeah, well it was messing me up in the head.
Q: You stayed at home until you were 17?
A: Mm hmm.
Q: And I suggest to you you were very close to your mum and dad. There was no reason why you couldn't tell them?
A: No, not close.
Q: Close enough to sit alongside her and help her type up the MSN messages to [the appellant]?
A: Yes, but we've never had a good relationship.
Q: You still don't have a good relationship with her?
A: We do now.
Q: She's a good grandmother to your kids?
A: Very good.
Q: And that's always been the case?
A: She's always been a good grandmother, yes.
Q: And I suggest to you it was always close enough for you to tell these things to her if they ever happened.
A: No.
[Defence counsel]: I don't take it any further your Honour.
At the conclusion of C's testimony, and in the absence of the jury, the prosecutor informed his Honour that her next witness would be C's mother, J. She drew his Honour's attention to two paragraphs of J's deposition in which J said that C's behaviour changed when she was 11 years of age and in year 6 at school. In the statement, J said that C became moody, withdrawn and argumentative. J added that C's behaviour got a lot worse in her first year at high school.[44]
[44] ts 171.
The prosecutor said that J's evidence about the changes in C's demeanour were relevant because the changes were consistent with C's allegations of abuse by the appellant.[45]
[45] ts 171 - 172.
Defence counsel opposed the State leading the foreshadowed evidence. Defence counsel asserted that this evidence was being led to show that C 'was probably being sexually abused'. He submitted that, in effect, J's evidence was inadmissible opinion evidence of a kind which could only properly be given by an expert. He referred the learned trial judge to s 36BE of the Evidence Act 1906 (WA), which permits expert evidence to be given on 'child development and behaviour in cases where children have been the victims of sexual offences'.[46] Defence counsel referred his Honour to two cases which he asserted supported his position,[47] being HG v The Queen[48] and CMG v The Queen.[49]
[46] ts 174 - 175.
[47] ts 176.
[48] HG v The Queen [1999] HCA 2; (1999) 197 CLR 414.
[49] CMG v The Queen [2011] VSCA 416.
His Honour ruled that the evidence proposed to be led from J was admissible. In brief ex tempore reasons, his Honour said that the proposed evidence was not expert evidence, as defence counsel had contended. His Honour concluded that the evidence was relevant for two reasons. First, the nature of the relationship between C and J was pertinent to explain why C did not complain to her mother at or about the time of the offending. Secondly, it was relevant to C's evidence that she was unhappy 'about what [the appellant] was doing to her, as she alleged'.[50]
[50] ts 179.
His Honour foreshadowed that he would give the jury, in his summing up, what he described as 'an inferences direction' on the evidence. His Honour said:[51]
I will also be telling the jury that this is where they use their common sense and their life experts [sic] but there is no expert evidence with respect to child behaviour which could lead them to any particular conclusion based on such evidence and that this evidence is to be considered in - as a part of all of the evidence and they - that they would not be entitled to draw an inference adverse to [the appellant] unless it was the only inference reasonably open on the facts they find proved.
[51] ts 180.
The portion of J's testimony which is the subject of grounds 1A and 1B was led as part of her examination‑in‑chief by the prosecutor. It is as follows:[52]
[52] ts 204 - 205.
Q: Now, in relation to your daughter [C] what was her demeanour like when she was young?
A: She was happy, a caring person.
Q: At any stage did her demeanour change?
A: Yes.
Q: How old was she when her demeanour changed?
A: Probably about year 6.
Q: And how old was [she in] year 6?
A: Eleven.
Q: How did her demeanour change?
A: She just became withdrawn, moody, argumentative.
Q: Did her demeanour change again?
A: After that, or …
Q: Yes?
A: Yeah, a few years later.
Q: So you told us in year 6 she became moody and argumentative?
A: Yeah.
Q: Did it become worse or better?
A: It got - it got worse.
Q: When did it get worse?
A: When she hit high school.
Q: How old was [C] when she hit high school?
A: Turning 13.
Q: And how did it get worse when she hit high school?
A: She became really withdrawn from me and more argumentative. Secretive and just didn't want to really talk to me much.
The appellant's submissions
It was accepted on behalf of the appellant that J's evidence that she did not have a close relationship with C at the time of the offending was admissible and relevant. Further, her evidence of C's demeanour at the time of the alleged offences was also admissible and relevant. The appellant's challenge to the evidence was only as to the change in C's demeanour.[53]
[53] Appellant's case, pars 31 - 32; WAB 11 - 12.
The thrust of the appellant's written submissions was that J's evidence as to the change in C's demeanour could only be admissible if expert evidence was given by an appropriately qualified witness to properly understand C's behaviour. As no such expert evidence was adduced at trial, J's evidence was inadmissible.
The appellant's submissions, in essence, repeat the submissions made by defence counsel at trial, and once again refer to s 36BE of the Evidence Act and the cases of HG and CMG.[54]
[54] Appellant's case, pars 33 - 35, 39 - 40; WAB 12 - 13.
Disposition
Grounds 1A and 1B are directed towards the admissibility of the impugned testimony given by J.
At trial, considerable emphasis was given to the reasons why C had not complained to her mother about the appellant's sexual conduct towards her at particular times after the commission of the alleged offences. C was repeatedly cross‑examined on the point. It was put to her, in effect, that she could have complained to her mother, J, because she and J had a close relationship.
C responded by testifying, in substance, that her relationship with her mother changed in that it deteriorated after the appellant began interfering with her, and that she and J 'had problems'.[55] Further, she testified that what the appellant was doing to her 'was messing me up in the head'.[56] As a result, C felt unable to confide in J. Once C testified under cross‑examination in this way, it was entirely open to the State to adduce evidence from J to show that, as C had said, there was a change in their relationship, and that C was behaving in a manner consistent with a person who was, as C put it, being '[messed] up in the head' by the appellant's behaviour towards her. We will expand upon the admissibility of this latter aspect of the evidence in dealing with ground 2. J's testimony was relevant to facts in issue, namely, why C did not complain to her mother, and C's behaviour was consistent with being sexually abused as she alleged.
[55] ts 169.
[56] ts 169.
J's evidence was not in any way expert evidence. She gave no opinion as to why C was behaving in the manner she described. Her evidence was only as to her observations of her daughter; observations she, as C's mother, was well able to make. The argument made on behalf of the appellant with respect to s 36BE of the Evidence Act was, as the appellant's counsel conceded in the hearing of the appeal, a red herring.[57] The resolution of grounds 1A and 1B do not depend upon any issue concerning the statutory construction of s 36BE. Section 36BE does not limit the reception of otherwise admissible non-expert evidence. Nor does it require an analysis of certain statements made in HG and CMG. No useful purpose would be served by dealing with the submissions made in relation to these matters. Plainly, J's evidence was relevant to facts in issue in the case and was admissible. Ground 1A must fail.
[57] Appeal ts 19.
Ground 1B must also fail. Of course, it is accepted that a trial judge, in his or her discretion, may exclude admissible evidence where its probative value is outweighed by its prejudicial effect. However, the present case did not call for the exclusion of J's evidence in the exercise of his Honour's discretion. The impugned evidence was not merely relevant, but it was, in our opinion, significantly probative to important factual issues in contest. In our opinion, it did not have any tendency to unfairly prejudice the appellant.
Grounds 1A and 1B have not been made out.
Ground 2
The appellant's submissions
At the heart of the appellant's submissions in support of ground 2 was the contention that there was a danger that the jury could have impermissibly reasoned, as a result of J's evidence, that the changes in C's demeanour were as a result of the appellant's sexual abuse of her. In this way, J's evidence, as to the change in C's demeanour, could have been incorrectly used by the jury as evidence which confirmed C's testimony.[58]
[58] Appeal ts 13 - 15.
Counsel for the appellant submitted that his Honour should have directed the jury that the evidence of J was admitted for a limited purpose and a limited purpose only, namely to confirm what C had said about her relationship with her mother and why she did not complain to her.[59] However, no such direction was given by his Honour.
The law
[59] Appeal ts 16.
It is well established that in order to ensure a fair trial for the accused, a trial judge may be required to direct a jury as to how evidence may be used in a trial, including how the evidence may not be used by the jury.[60]
The directions
[60] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] - [42]; Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443 [69].
The trial judge accurately summarised the State and defence cases. His Honour gave orthodox directions as to how the jury should treat delay in complaint. As to why there may be good reasons for not making a prompt complaint, his Honour referred to the evidence concerning C's change of demeanour when she was in about year 6, and how it got worse when she began high school at the age of 13 when C became 'really withdrawn from [J] and more argumentative and secretive'.[61]
[61] ts 446.
His Honour then directed the jury as to how facts may be proved by inference. In this connection, he drew the jury's attention to the evidence of C's change in behaviour 'over the timeframe within which she alleges that she was sexually dealt with [being] conduct which [the State alleged] was consistent with her being dealt with in that way'.[62] His Honour gave the following direction:[63]
[62] ts 447 - 448.
[63] ts 447 - 449.
Now, in this case, this is a criminal trial and I said to you that an accused person [the appellant] is presumed to be innocent unless and until he is proved to have committed an offence beyond reasonable doubt. Now, in this case, with respect to each of [C] and [R], the State says that her change in behaviour over the timeframe within which she alleges that she was sexually dealt with was conduct which was consistent with her being dealt with in that way.
The State says that you can find the following facts proved: as to [C], firstly, she said she was close with her mum until she started to get messed around by [the appellant]. And I've already referred to what she said in dealing with delay. And then she grew distant. She and her mum had problems and were then no close [sic]. She didn't say that she couldn't confide in her mother.
Secondly, her mother said that when she was young she was happy and caring. Her demeanour changed in about year 6 when she was about 11 where she became argumentative, withdrawn and moody. Got worse [sic] when she got to high school where she became really withdrawn from her mother and more argumentative and secretive. …
The State says that you can, from those facts you find proven, you can draw the inference that the change in behaviour is consistent with respect to [C] and [R] showing the effect of sexual dealing by [the appellant] of them at the time as they described. You need to consider whether and what inferences can be drawn from facts you find proved.
It's for you to determine which facts have been proven, and then from those facts that you find proven, whether you're satisfied beyond reasonable doubt that the only reasonable inference to draw from those facts is that asserted by the State. It doesn't mean that you speculate. It doesn't mean that you look for theories that are unsupported by the evidence. But it's for you to determine from the facts that are proven what logical conclusions are to be drawn.
And whether you're satisfied beyond reasonable doubt that the only reasonable inference to draw from those facts is that asserted by the State. Now, you don't look at facts in isolation when you're considering what inferences are to be drawn. You look at all of the evidence in this case of which those facts are but part. On the other hand, defence says that that is not the only inference that can be drawn from proven facts. That is, the inference pressed by the State.
To that end, defence counsel says that there could be any number of reasons if you accept what is said by [C] and her mother and [R's] mother, that there could be any number of reasons why [C] and/or [R] displayed behavioural traits. Each of them could have been troubled by any number of issues which face growing children. Be it school or relationships or any other reason. Or it could be the exigencies of growing-up and entering puberty in which is it common [sic] for young people, you might think, to act in a way which is of concern to their parents.
Including becoming secretive and distant. There is nothing unusual about that, defence counsel says. There is no expert evidence before you as to what this behaviour, if you find it to have taken place, might mean. You really do in this instance, ladies and gentlemen, need to use your common sense and life experiences. Now, in a criminal trial before you draw an inference that's adverse to an accused person, you must be satisfied that it is the only reasonable inference capable of being drawn consistent with the proven facts.
And that's just consistent with the burden of proof that lies on the State, and the standard of proof. It would not be proper for you to draw an inference adverse to [the appellant] unless you have reached the conclusion that such an inference is the only reasonable one open to you on the evidence. The circumstances which you find to have been established, must be such as to exclude every reasonable inference consistent with his innocence.
The prosecutor submitted to the jury that C’s change of behaviour supported her testimony about the appellant's sexual behaviour towards her. A question raised by ground 2 is whether the evidence of C's change in behaviour was admissible to support C's testimony. In our opinion, it was admissible for these reasons.
The process of logic underpinning the relevance of this evidence is that, as a matter of common human experience, the infliction of trauma upon an individual may, but does not always, cause, at or shortly after the infliction of the trauma, adverse behavioural change. Of course, the infliction of trauma may not have such an effect. The extent and degree of the change in behaviour may also be variable. Further, a change in behaviour may be caused by something other than the infliction of trauma.
The law recognises that evidence of the distressed state of a complainant who claims to have been sexually assaulted may corroborate the evidence of the complainant.[64] The rationale behind the admissibility of this evidence is the causal connection between the alleged assault and the distressed condition.[65] In our view, by analogous reasoning, evidence of a change of behaviour on the part of the complainant which is contemporaneous with an alleged sexual offence is not merely admissible to show consistency of behaviour, it is also admissible to corroborate the evidence of the complainant, at least where (as the trial judge directed in this case) the jury is satisfied that is the only reasonable explanation for the behaviour.[66]
[64] See Azarian v The State of Western Australia [2007] WASCA 249 [44] ‑ [48].
[65] R v Flannery [1969] VR 586, 591.
[66] In Flannery it was said that evidence of distress was capable of constituting corroboration where the reasonable inference from the evidence is that there is a causal connection between the alleged assault and the distressed condition, and was not capable of constituting corroboration if such inference was not open. This passage was adopted in Azarian [44], [155] and Eades v The Queen [2001] WASCA 329 [32]-[34].
In the present case, when C and J's testimony is considered together, it is capable of leading to the conclusion that C's change of behaviour was caused by the appellant's sexual conduct towards her. This is particularly so where C testified to the effect that it was the appellant's behaviour that led to her becoming 'messed up'.
The appellant submitted that how a victim of a sexual offence might behave as a result of such offending was beyond the common experience of a jury and could only be the subject of expert testimony. We do not accept that submission, in the wide terms in which it was couched. There is a general reluctance to receive expert evidence about human behaviour. As Buss JA observed in RST v The State of Western Australia:[67]
Expert or opinion evidence is not admissible in relation to matters of ordinary human experience. For example, expert or opinion evidence as to a person's behavioural characteristics is not admissible unless the significance of those characteristics could not properly be understood by the jury without the aid of that evidence. (citations omitted)
See also Liyanage v The State of Western Australia.[68]
[67] RST v The State of Western Australia [2016] WASCA 59.
[68] Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359 [122], [130] - [132].
There may well be times where expert evidence could properly be admissible to explain the behaviour of an alleged victim of a sexual offence. Section 36BE of the Evidence Act facilitates the proof of such matters. Section 36BE of Evidence Act does not, as the appellant appeared to suggest, mean that a jury is precluded from deciding matters of ordinary human behaviour. In our opinion, the common experience of a jury is sufficient to properly draw a conclusion about the effect that trauma, of the kind allegedly suffered by C, may have on the behaviour of an alleged victim.
For these reasons, the evidence of J, when considered together with C's evidence, was admissible to show what caused C's change of behaviour and thus to support C's testimony that she had been sexually interfered with by the appellant.
Having determined that the evidence was admissible, the question becomes whether the trial judge's directions in relation to it were sufficient.
The directions given by his Honour were similar in form to the directions customarily given to a jury as to how to deal with the evidence of the distressed condition of a complainant. In our opinion, his Honour's directions were not erroneous. His Honour instructed the jury that, before they could conclude that C's change in behaviour was consistent with her being dealt with in the way she alleged, they had to be satisfied that it was the only reasonable inference to be drawn from the evidence. His Honour instructed the jury as to the possible alternative reasons for C's apparent change of behaviour, including problems at school, with relationships or, as his Honour put it, 'the exigencies of growing up and entering puberty'.
In our opinion, ground 2 has no reasonable prospect of succeeding and leave to appeal should be refused with respect to it.
The proviso
The State submitted that in the event that ground 2 was upheld, this court should apply the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA). The State was given leave to file written submissions after the conclusion of the oral hearing in support of this contention. The appellant was given leave to file submissions in answer. Written submissions were received from both the respondent and the appellant as to the application of the proviso.
As none of the grounds of appeal have been established, the question of the application of the proviso does not arise in this appeal.
Conclusion and orders
In our opinion, the evidence of J when considered with the evidence of C was properly admitted to confirm C's testimony. His Honour's directions were correct as to how that evidence may be used by the jury, and the path that it had to follow before the evidence could be used in that way.
In our opinion, the grounds of appeal have not been made out. The appeal must be dismissed. The orders that we would make are:
1.Leave to appeal on ground 2 is refused.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Research Associate/Orderly to the Honourable Justice Mitchell4 FEBRUARY 2019
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